Opinion
2014-01-22
COURTVIEW OWNERS CORP., appellant-respondent, v. COURTVIEW HOLDING B.V., et al., respondents-appellants.
Rosen, Livingston & Chols (Lester Schwab Katz & Dwyer, LLP, New York, N.Y. [Harry Steinberg], of counsel), for appellant-respondent. Belkin Burden Wenig & Goldman, LLP, New York, N.Y. (Jeffrey L. Goldman, Magda L. Cruz, David R. Brand, and Alexa Englander of counsel), for respondents-appellants.
Rosen, Livingston & Chols (Lester Schwab Katz & Dwyer, LLP, New York, N.Y. [Harry Steinberg], of counsel), for appellant-respondent. Belkin Burden Wenig & Goldman, LLP, New York, N.Y. (Jeffrey L. Goldman, Magda L. Cruz, David R. Brand, and Alexa Englander of counsel), for respondents-appellants.
In an action, inter alia, for declaratory relief, the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Nahman, J.), entered January 27, 2012, as denied its motion for leave to amend the complaint to assert a cause of action to recover damages for breach of fiduciary duty and for summary judgment on that cause of action and on the causes of action for declaratory relief and ejectment, and (2) so much of an order of the same court entered May 8, 2012, as, in effect, denied that branch of its motion which was for leave to renew its prior motion, and the defendants cross-appeal, as limited by their brief, from (1) so much of the order entered January 27, 2012, as denied their cross motion for summary judgment dismissing the cause of action for ejectment and in connection with the cause of action for declaratory relief, and (2) so much of the order entered May 8, 2012, as, in effect, denied that branch of their cross motion which was for leave to renew their prior cross motion.
ORDERED that the orders are affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
“Leave to amend a pleading pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice or surprise to the opposing party results directly from the delay in seeking leave to amend” (Kruger v. EMFT, LLC, 87 A.D.3d 717, 718, 930 N.Y.S.2d 11; see CPLR 3025[b]; Lucido v. Mancuso, 49 A.D.3d 220, 225–229, 851 N.Y.S.2d 238). “A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed” (Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d 654, 655, 968 N.Y.S.2d 95 [internal quotation marks omitted]; see Sanatass v. Town of N. Hempstead, 64 A.D.3d 695, 695, 881 N.Y.S.2d 901). Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend the complaint to assert a cause of action to recover damages for breach of fiduciary duty.
Further, the Supreme Court properly denied, as untimely, those branches of the plaintiff's motion which were for summary judgment, and the defendants' cross motion for summary judgment, as the parties failed to demonstrate good cause for making their respective motion and cross motion more than 60 days after the filing of the note of issue, as required by a preliminary conference order ( see Rivera v. New York Presbyt. Hosp., 57 A.D.3d 755, 868 N.Y.S.2d 913; Jackson v. Jamaica First Parking, LLC, 49 A.D.3d 501, 501, 851 N.Y.S.2d 892; Coty v. County of Clinton, 42 A.D.3d 612, 614, 839 N.Y.S.2d 825). While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment ( see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203; Kung v. Zheng, 73 A.D.3d 862, 863, 901 N.Y.S.2d 334), contrary to the defendants' contention, the discovery outstanding at the time the note of issue was filed was not essential to their cross motion ( see Avezbakiyev v. City of New York, 104 A.D.3d 888, 888–889, 960 N.Y.S.2d 910; Greenpoint Props., Inc. v. Carter, 82 A.D.3d 1157, 1158, 919 N.Y.S.2d 370).
Moreover, the Supreme Court properly denied those branches of the parties' respective motion and cross motion which were for leave to renew, as the “new facts” offered would not “change the prior determination” (CPLR 2221 [e][2]; see Tingling v. C.I.N.H.R., Inc., 74 A.D.3d 954, 956, 903 N.Y.S.2d 89).
In light of our determination, we need not reach the parties' remaining contentions. ENG, P.J., BALKIN, LOTT and ROMAN, JJ., concur.